Om Vishwashanti Chs (Proposed) Through … vs Mumbai Municipal Corporation Thrugh … on 11 February, 2026
inkinccorporation@gmail.com
Bombay High Court
Om Vishwashanti Chs (Proposed) Through … vs Mumbai Municipal Corporation Thrugh … on 11 February, 2026
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2026:BHC-OS:4117-DB WP 1612 OF 2024.DOCX
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
LAXMI WRIT PETITION NO.1612 OF 2024
SUBHASH
SONTAKKE
Digitally signed
by LAXMI
1. Om Vishwashanti CHS (Proposed),
SUBHASH
SONTAKKE
Date: 2026.02.12
19:38:54 +0530
Through his Chief promoter
Sadhashiv Nanekar, having his
address at Nevatia Municipal Colony,
Nevatia Road, Malad (East), Mumbai 400 097.
2. Okhawala Shelter, Builders &
Developers, having its office at 402,
Morya Land Mark II, New Link Road,
Andheri West, Mumbai 400 053. ...Petitioners
Versus
1. Mumbai Municipal Corporation
Through Municipal Commissioner,
Head office, Mahalika Bhavan
Mahapalika Marg, Opp. CSMT,
Mumbai-400 001
2. Executive Engineer (D.P.),
P & R Ward, Municipal Head Office,
Mahapalika Marg, Fort,
Mumbai-400 001.
3. Slum Rehabilitation Authority,
Administrative Building, Anant Kanekar Marg,
D. Block, BKC, Naupada, Bandra East,
Mumbai-400 051.
4. The Additional Municipal Commissioner,
BMC Western Suburbs,
Brihanmumbai Mahanagarpalika,
Municipal Head Office, Annexe Building,
2nd Floor, Mahapalika Marg, Fort,
Mumbai-400 001.
5. The Assistant Municipal Commissioner,
P/North Ward & Competent Authority,
Near Liberty Garden, Mamletdarwadi Marg,
Malad-West, Mumbai-400064 ...Respondents
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_______
Mr. Girish Godbole, Senior Advocate i/b. Ramsingh & Ajar Ahmed Ansari for
Petitioner.
Mr. Joel Carlos aw Pushpa Yadav for Respondent No.1 BMC.
Mr. Jagdish Aradwad (Reddy) for Respondent No..3-SRA.
_______
CORAM: G. S. KULKARNI &
AARTI SATHE, JJ.
RESERVED ON: 20th JANUARY 2026
PRONOUNCED ON: 11th FEBRUARY 2026
JUDGMENT (PER AARTI SATHE, J.):
–
1. This Petition under Article 226 of the Constitution of India has been
filed praying for the following substantive reliefs:-
“(a) To admit the present Writ Petition and issue Rule.
(b) That by a writ of mandamus, writ in the nature of mandamus
or any other writ, order and direction, the Order dated
10.1.2024 passed by the Respondent No.4, copy of which is at
EXHIBIT ‘O’ to this petition may kindly be quashed and set
aside and by the same order the Respondent Nos. 1, 2, 4 and 5
may kindly be directed to sanction the building proposal
submitted by the Petitioners on 08.1.2024 and permit the
Petitioners to commence and complete the construction of the
building in accordance with that proposal.
(c) By a suitable order interim effect, operation and
implementation of the Order dated 10.1.2024 copy of which is at
EXHIBIT ‘Q’ to the petition may be kindly stayed during
pendency of this petition.”
2. This is the second round of litigation before this Court challenging the
order dated 10th January 2024 passed by Respondent No. 4-The Additional
Municipal Commissioner, Mumbai Municipal Corporation cancelling the No
Objection Certificate (NOC) dated 31st December 2021 given to Respondent No.
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3- Slum Rehabilitation Authority (SRA) by the Estate Department of the
MCGM/BMC. On account of the cancellation of the NOC, the Petitioners are
aggrieved, inasmuch as it is their grievance that they are unable to commence and
complete the construction of the building in accordance with the proposal
submitted for the redevelopment of the building. As noted by us, this Petition is
being re-heard in view of the order dated 28th November 2025 passed by the
Supreme Court in Special Leave Petition (C) No. 31485 of 2025 which challenged
the order dated 20th June 2025 passed by this Court by which the present Writ
Petition came to be rejected on the ground of availability of an alternate remedy.
The Supreme Court, by the said order dated 28 th November 2025 has modified
the order dated 20th June 2025 passed by this Court and in pursuance thereto, this
matter has been taken up for hearing. The relevant paragraphs of the order dated
28th November 2025 passed by the Supreme Court are reproduced below:-
“3. Our order dated 31.10.2025 reads thus:-
“1. Delay condoned.
2. Exemption Application is allowed.
3. Heard Mr. Shyam Divan, the learned Senior counsel appearing
for the petitioners.
4. Prima facie, it appears from the materials on record that the
petitioners – herein are Developers. They entered into an
agreement for redevelopment of a slum. It is not in dispute that the
Municipal Corporation issued `No Objection Certificate’ in favour
of the petitioners – herein. Thereafter, a letter of intent was also
issued. Later, the Corporation decided to withdraw the `NOC’
which was issued in favour of the petitioners – herein. This led to
filing of a Writ Petition No.26148/2023 by the petitioners before
the High Court.
5. The High Court disposed of the Writ Petition, referred to above,
filed by the petitioners – herein vide order dated 8-11-2023. The
order reads thus:-
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WP 1612 OF 2024.DOCX“1. Mr Chinoy has instructions to state that the impugned
order at page 30A stands withdrawn. It is of 6th September
2023. The Municipal Corporation of Greater Mumbai
(“MCGM”) will issue a fresh show cause notice to the
Petitioners and will afford the Petitioners a hearing and
then pass an order thereafter.
2. Mr Vashi’s contention that the Municipal Commissioner
has no authority in law to issue such a notice is for the
present kept open. Mr Vashi is at liberty to urge that point if
necessary in any later proceedings.
3. The Petition is disposed of. No costs.”
6. In pursuance of the order passed by the High Court, a Show
Cause Notice was issued by the Municipal Corporation to which
the petitioners duly replied and ultimately the final order came to
be passed dated 10-1- 2024 cancelling the `NOC’.
7. The operative part of the Order dated 10-1-2024 reads thus”-
“Considering all the above factors, 1 pass the order as under:-
i) The NOC given to SKA by Estate Department dated 31 12.2021 is
hereby cancelled. CEO(SRA) be informed to record the proposed Slum
Rehabilitation scheme.
ii) As such, the construction of Municipal Ward Office building will be
carried out by BMC alongwith the rehabilitation of existing affected
eligible structures as per prevailing policy of BMC at BMC’s cost.
iii) After recording of the proposed Slum Rehabilitation scheme by
Chief Executive Officer (SRA) the premium charges paid by the
Developer to BMC will be refunded.”
8. It appears on plain reading of the impugned order that the High
Court declined to entertain the writ petition filed by the petitioners on
the ground of alternative remedy available with the petitioners and
also for the reason of disputed questions of fact could not have been
gone into in exercise of Writ jurisdiction.
9. Prima facie, we are of the view that at least the Order dated 10-1-
2024, referred to above, was amenable to judicial review.
10. The High Court ought to have looked into the legality and validity
of the Order dated 10-1-2024.
11. Issue notice, returnable on 28-11-2025.
12. Dasti service, in addition, is permitted.
13. In the meantime, the parties shall maintain status- quo.”
4. We heard Mr. Pradeep Aggarwal, the learned counsel appearing
for the petitioners, Mr. Atmaram Nadkarni, the learned senior
counsel appearing for the respondent nos.1,2,4 and 5 respectively
and Mr. Abhikalp Pratap Singh, the learned counsel appearing for
the respondent no.3.
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5. Mr. Nadkarni very fairly submitted that in view of what has fallen
from this Court, as recorded in the order dated 31.10.2025, referred
to above, the High Court may be requested to look into the legality
and validity of the order dated 10.1.2024 passed by the respondent
no.1 withdrawing the NOC. He would submit that let this order be
subjected to judicial reviewability.
6. In view of the aforesaid, the impugned order passed by the High
Court is modified to the extent that the High Court shall hear the
parties insofar as challenge to the order dated 10.1.2024 is
concerned in accordance with law.
7. All contentions are kept open to be canvassed before the High
Court.
8. We request the High Court to hear the parties as regards the
challenge to the order, referred to above, preferably within a period
of eight weeks from today.
9. In the case of any difficulty, it shall be open for the petitioners to
pray for appropriate interim relief before the High Court.
10. It is needless to clarify that we have not gone into the merits of
the matter.
11. In view of the aforesaid, the Special Leave Petition stands
disposed of.
12. Pending application(s), if any, stand disposed of.”
3. Briefly the facts are as follows:-
i. Petitioner No. 1 is a Chief Promoter of the proposed Co-operative Housing
Society (CHS) and Petitioner No.2 is a partnership firm carrying on business as
builders and developers. It is the Petitioners’ contention that as per development
plan of Development Control and Promotion Regulation 2034 (DCPR 2034) of
P-North Ward, a part of the land bearing CTS No. 558B is reserved for a
municipal office, premises for disaster management facility and also part of it is
designated for an existing municipal chowky. Also a part of the said land is
affected by setback area of 12.20 meters (road widening) and 18.30 meters regular
line, as the said land is situated in a residential zone.
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WP 1612 OF 2024.DOCXii. The Petitioners contend that there are a total of 134 slum dwellers who have
formed the society of which Petitioner No. 1 is a Chief Promoter. Petitioner No. 1-
Society submitted a Slum Rehabilitation Scheme (S.R. Scheme) originally through
an earlier developer appointed by it. However, since the said developer could not
implement the SR scheme, Petitioner No. 2- Developer was recognized as a new
developer by Respondent No. 3- Slum Rehabilitation Authority (SRA). Petitioner
No.2- Developer was appointed in the year 2016 by a General Body Resolution
dated 27th February 2016 passed by Petitioner No. 1- Society. In pursuance of the
said General Body Resolution, the Society executed a power of attorney,
development agreement and granted consent in favour of Petitioner No. 2-
Developer. After the appointment of Petitioner No.2 as the developer, the
Petitioner No. 2- Developer put up the proposal before Respondent No. 3-SRA
for redevelopment of the slums in respect of plot bearing CTS No. 558/B, 558/B 1
to 40, village Malad East, Taluka Borivali (hereinafter referred to as the “said
land”). The Municipal Corporation is admittedly the owner of the entire land in
question. As stated aforesaid, part of the said land was reserved for a Municipal
Office and Disaster Management Facilities and a Municipal Chowky. Post
submission of the proposal by Petitioner No. 2-Developer to Respondent No.3-
SRA, the SRA directed Petitioner No. 2-Developer to obtain NOC for Annexure-
II from Respondent No. 1-Municipal Corporation of Greater Mumbai (MCGM)/
Brihanmumbai Municipal Corporation (BMC).
iii. On 16th September 2017, the Deputy Collector, SRA issued a letter of even
date to the Assistant Municipal Commissioner P/North and Competent Authority,
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WP 1612 OF 2024.DOCXi.e. Respondent No. 5 requesting to issue Annexure II in respect of the Petitioner
No. 1 Society. After issuing the draft Annexure-II dated 30 th October 2018, the
Assistant Municipal Commissioner P/North & Competent Authority addressed a
letter dated 4th February 2019 to the Estate department of the MCGM/ BMC for
issuance of NOC for certification of final Annexure II.
iv. On 3rd September 2021, the concerned department of MCGM after obtaining
an opinion from the legal department of MCGM, took a decision that all the
required NOCs were to be given to Petitioner No. 2-Developer and the S.R.
scheme was operative. In pursuance of the aforesaid letter dated 3 rd September
2021 and after following all the procedures and due diligence, the Estate
Department of MCGM/ BMC issued NOC dated 31st December 2021 under the
title “NOC to issue Annexure-II for S.R. Scheme” in respect of the Petitioner No.
1- Society. The said NOC was issued by placing reliance on all the earlier decisions
and deliberations which had taken place in the concerned department of MCGM.
v. It is the Petitioners’ contention that after issuance of the NOC dated 31 st
December 2021certifying the final Annexure II by MCGM, the Estate
Department of MCGM/ BMC was well aware that an area of 4705 sq. mtrs was
available to them to build the Municipal Office and Disaster Management
Facilities and Municipal Chowky and a chart to that effect was prepared by the
Estate Department of MCGM/ BMC.
vi. On 9th February 2022 on the basis of the NOC dated 31 st December 2021, the
Assistant Municipal Commissioner P/North Ward and the Competent Authority
addressed a letter of even date to the Deputy Collector (W.S.) SRA and certified
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WP 1612 OF 2024.DOCXthe final Annexure II and forwarded a copy thereof to the Deputy Collector, SRA
for further issuance of Letter of Intent (LOI). It is the Petitioners’ contention that
in the said certified Annexure II dated 9th February 2022 issued by the Assistant
Municipal Commissioner P/North Ward and Competent Authority, a total
number of 79 slum dwellers were shown as eligible and 34 were shown as
ineligible.
vii. On 11th November 2022, after receiving the final Annexure II, Respondent
No. 3-SRA issued LOI of even date in favour of Petitioner No. 2-Developer by
imposing a condition to obtain D.P. Remark from MCGM before obtaining
Intimation of Approval (IOA).
viii.On 6th January 2023, the Architect of Petitioner No. 2-Developer made an
application submitting the plans showing Built-up Area (BUA) of the BMC office
to the Executive Engineer (D.P.) P & R Ward for issuance of sanction of the D. P.
Department. However, it is the Petitioners’ contention that the Petitioners did not
receive any reply to the aforesaid application.
ix. Since the Petitioners did not receive any reply on their application dated 6 th
January 2023 from the Executive Engineer (D.P.), P & R Ward and no sanction
was issued, a legal notice dated 28 th July 2023 was addressed to the Executive
Engineer , Development Plan (D.P.), P & R Ward through their authorized
representative requesting issuance of sanction of the Development Plan
Department within seven days of receipt of the notice.
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WP 1612 OF 2024.DOCXx. On 12th September 2023, the MCGM replied to the legal notice dated 28 th July
2023 (supra) and informed the Petitioners that the office of the Estate Department
of the MCGM/ BMC has been informed to take further necessary action at their
end. It is the Petitioners’ contention that there was no comment made in the said
letter insofar as the plans submitted by the Petitioners by the application dated 6 th
January 2023.
xi. Being aggrieved by the inaction on the part of the Executive Engineer (D.P.), P
& R Ward of not granting sanction to the Petitioners’ plan, the Petitioners filed
Writ Petition (L) No. 26148 of 2023 before this Court for issuance of directions to
the Executive Engineer (D.P.), P & R Ward to issue necessary sanction of the D.P.
Department to the building plans submitted by the Petitioner No. 1-Society and
Petitioner No. 2-Developer.
xii. It is the Petitioners’ contention that on 18 th October 2023, an affidavit in reply
of even date was filed in the said Writ Petition by Respondent No. 1-MCGM,
wherein a letter dated 6th September 2023 addressed by the Municipal
Commissioner to the CEO, SRA requesting him to cancel the LOI dated 11 th
November 2022 issued in favour of the Petitioners, was disclosed for the first time.
To bring on record the aforesaid letter dated 6 th September 2023, the Petitioners
amended the said Writ Petition.
xiii. It is the contention of the Petitioners that there was a meeting dated 2 nd
February 2023, which was attended by the Assistant Engineer, MCGM and
Member of Legislative Assembly (MLA) of the said area, which was never
informed to the Petitioners and it is only on the RTI application dated 19 th
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WP 1612 OF 2024.DOCXOctober 2023 made by the Petitioners that the Petitioners, were made aware of the
said meeting dated 2nd February 2023.
xiv. On 8th November 2023, this Court passed an order of even date on Writ
Petition (L) No. 26148 of 2023 disposing of the Petition on the statement made
by the learned Counsel on behalf of Respondent No. 1- MCGM, on instructions,
that the order dated 6th September 2023 is withdrawn. The order dated 8 th
November 2023 reads thus:-
“1. Mr Chinoy has instructions to state that the impugned order at
page 30A stands withdrawn. It is of 6 th September 2023. The
Municipal Corporation of Greater Mumbai (“MCGM”) will issue
a fresh show cause notice to the Petitioners and will afford the
Petitioners a hearing and then pass an order thereafter.
2. Mr Vashi’s contention that the Municipal Commissioner has no
authority in law to issue such a notice is for the present kept open.
Mr Vashi is at liberty to urge that point if necessary in any later
proceedings.
3. The Petition is disposed of. No costs.”
xv. Pursuant to the order dated 8th November 2023, a show cause notice dated 29 th
December 2023 was issued and served on the Petitioner No. 2-Developer
whereby the Petitioners were asked to show cause “as to why the NOC dated
31st December 2021 issued by the Estate Department of the MCGM/ BMC in
favour of the Petitioners should not be cancelled”. In the said show cause
notice, the reason for cancellation of the NOC was primarily on the ground
that the Petitioners after the grant of the NOC dated 31 st December 2021, had
failed to satisfy the requirements of conditions of the LOI as per proposal
submitted by the Petitioners. The said show cause notice also alleged that
Petitioner No. 2-Developer was aware of the fact that that the required area of
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4705 sq. mtrs. in one building and floor plate of minimum 1300 sq. mtrs. on
each floor is to be constructed by the Petitioners, which was informed to the
Petitioner No. 2-Developer in the meeting held on 20 th December 2023. The
show cause notice also referred to the earlier meetings dated 27 th April 2023,
wherein the Petitioners were asked to provide the feasible plan/proposal that
can satisfy the requirements of the BMC Ward Office. Since the Petitioners had
failed to satisfy the aforesaid conditions, the Petitioners were asked to show
cause as to why the NOC dated 31st December 2021 should not be cancelled.
xvi. It is in pursuance of the aforesaid show cause notice that the order dated 10th
January 2024 came to be passed by the Additional Municipal Commissioner,
MCGM/ BMC i.e. Respondent No.4 (hereinafter referred to as the “impugned
order”) cancelling the NOC and also taking over the construction of the
Municipal Ward Office building by MCGM/BMC along with rehabilitation of
existing affected eligible structures as per the prevailing policy of BMC at
BMC’s costs.
4. The Petitioners being aggrieved by the aforesaid impugned order, have
filed the present Petition.
5. Earlier, as noted above, a co-ordinate Bench of this Court by its order
dated 20th June 2025, dismissed the Petition filed by the Petitioners. The relevant
paragraphs of the said order reads thus:-
“3) A bare perusal of the Order dated 10th January 2024
demonstrates that it is well-structured and reasoned and does not
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WP 1612 OF 2024.DOCXdue process of hearing the parties and thereafter has terminated
the developer i.e. Respondent No.2.
4) Upon hearing Mr. Tiwari and perusing the Petition, we
enquired how the Petition was maintainable. The learned
Advocate was unable to demonstrate any right that the slum
society or, worse still, even the Petitioner No.2-developer
possessed under Article 14 of the Constitution of India to file the
Petition.
5) Having examined the papers on record, we find that the
grounds raised would require detailed examination of the parties’
claims which are essentially in the nature of a private dispute. The
disputed issues concerning the planning and design of the
building, specifically how the building should or should not be
structured, are not the issues to be decided within the jurisdiction
of this Court under Article 226 of the Constitution of India. Such
matters squarely fall within the realm of the Brihanmumbai
Municipal Corporation (BMC). Likewise, the developer’s
contentions regarding deviations in the plans due to the floor plate
or the size of the plot cannot be adjudicated by this Court.
5.1) Furthermore, the slum society has no right to select or
determine the developer, which is a prerogative of the BMC in
consultation with the Slum Rehabilitation Authority (SRA).
6) It would be appropriate to observe that, the slum colonies are
creations of slumlords and a direct result of the State’s inaction
through its Municipal Corporation and the police, who bear
principal responsibility for their removal as stated by the Single
Bench of this Court in Reverend Father, Peter Paul Fernandes,
Parish Priest and Sole Trustee of the Church of St. Francis Xavier
vs. State of Maharashtra reported in AIR 1991 Bom 445, Abdul
Majid Vakil Ahmad Patvekari vs. Slum Rehabilitation Authority
reported in 2021 SCC OnLine Bom 13719, Abdul Aziz vs. AGRC
reported in 2024 SCC OnLine Bom 744 and Bishop John
Rodrigues vs. State of Maharashtra & Ors reported in 2024 SCC
OnLine Bom 1632.
7) Would we be justified in granting this Petition and permitting
these squatters or slum dwellers, who are ex facie illegal
occupants and who have no lawful entitlement to the land in the
first place, to dictate the choice of their developer and impose
terms on the State? The answer is an emphatic negative.
8) We therefore find that, this Petition is a guise filed by the
developer himself under the cover of the slum dwellers designed
solely to continue his appointment. It is evident that, this is in
essence a private dispute. The real motive behind filing this Writ
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Petition is to circumvent the appropriate legal remedy of filing a
civil suit for termination of the contract, which is a private dispute
at its core.
9) We find no justification to interfere with the decision of the
Respondents. Accordingly, the Petition is dismissed.”
6. As stated above, the Petitioners filed a Special Leave Petition (SLP) (C)
No. 31485 of 2025 against the aforesaid order which was decided by the Supreme
Court by its order dated 28th November 2025 (reproduced in paragraph 2 above).
It is in the above backdrop, that we proceed to decide this Petition.
7. We have heard Mr. Girish Godbole, learned Senior Counsel for the
Petitioners, Mr. Jagdish Aradwad (Reddy), learned Counsel for Respondent No.3-
SRA and Mr. Joel Carlos, learned Counsel for the Respondent No. 1- MCGM.
With the assistance of the Counsels for the respective parties and on perusal of the
impugned order and the records, we proceed to dispose of the present Petition.
8. Mr. Godbole on behalf of the Petitioners has assailed the findings as
given in the impugned order on the ground that the same is passed without
appreciating the facts and not considering that the Petitioners had at all times
satisfied the conditions as prescribed in the NOC dated 31 st December 2021. He
further submitted that acting on the NOC dated 31 st December 2021, the LOI
dated 11th November 2022 was issued to the Petitioners and the Petitioners had
accordingly made a plan and submitted it to the Executive Engineer (D.P.), P & R
Ward on 6th January 2023. It was also his submission that the NOC dated 31 st
December 2021 was issued because a request was received from the Assistant
Municipal Commissioner, P/North Ward for issuance of NOC for the purposes of
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SR Scheme on the said land. Thereafter, a proper procedure and legal opinion was
sought and only after that, the NOC dated 31 st December 2021 was issued subject
to the conditions contained therein. The said conditions were incorporated in the
LOI dated 11th November 2022 and all the reservations which were made for the
benefit of the MCGM/BMC were complied with by the Petitioner. He also
submitted that the impugned order has not taken into consideration all these facts
and the actions taken by the Petitioners subsequent to the issuance of the NOC
and the LOI. It is his further contention that it is only on a complaint by local
MLA/busybody that the MCGM/ BMC has sprung into action and cancelled the
NOC which was legitimately issued in favour of the Petitioners. It is his
submission that the Petitioners were under the legitimate expectation that the
NOC had been issued in their favour and hence had arranged their business affairs
in the said manner and the cancellation of the NOC had altered their position vis-
a-vis the redevelopment of the S.R. Scheme thereby causing huge financial loss. It
was further his submission that the impugned order needs to be quashed and set
aside, and the Petitioners be granted NOC and allowed to carry on the
redevelopment of the S.R. Scheme.
9. Mr. Joel Carlos, learned Counsel for the Respondent No. 1-MCGM has
vehemently opposed the submissions as made by the learned Counsel for the
Petitioners. It is his primary contention that the MCGM/ BMC is the owner of the
said land and it is well within their rights to not only grant NOCs but also revoke
NOCs if the situation so demands. It is his vehement submission that MCGM/
BMC being the owner of the land has the first right and say in respect of the
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development and exploitation of the said land. He also submitted that the NOC
and the LOI categorically placed a condition that the developer had to comply with
the conditions stipulated therein and specifically the condition that the plot is
reserved for public purposes i.e. Municipal Ward Office, Disaster Management
Facilities and Municipal Chowky had to be complied with. He further submitted
that the Petitioner No. 2-Developer from the date of issuance of the NOC dated
31st December 2021 till the issuance of show cause notice dated 29 th December
2023 has taken no steps to redevelop or build the Municipal Chowky or the
Disaster Management Facility or the Municipal Ward Office as stipulated in the
NOC and LOI. He also submitted that there were other specific conditions in the
LOI like that the Petitioners were under an obligation to get necessary permissions
and submit plans and applications to the concerned authorities which the
Petitioners have failed to do. He has drawn our attention to the conditions in the
LOI dated 11th November 2022 and more specifically to condition Nos. 33 and 53
which read thus:-
“33. That you shall sübmit the NOC from CFO, NOC from E.E.(T &
C) and NOC from Ch. Eng. (M&E) of MCGM.
53. That you shall submit the concurrence from AC P/N, Ch. Officer
(DM) & Municipal Architect for proposed Plans of Municipal Office
Building + Disaster management Facility + Cyclone Shelter Center +
Municipal Chowky before asking plinth C.C.”
10. He therefore submitted that these conditions have not been complied
with by Petitioner No. 2-Developer and hence the impugned order has been
passed on a correct appreciation of the facts. He has also placed reliance on the
affidavit dated 5th December 2024 filed by one Mr. Kiran Dighavkar, the Assistant
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Commissioner, P North Ward Office Liberty Garden, Malad (West), Mumbai.
The relevant paragraphs of the said affidavit are reproduced hereinbelow:-
“7. I say that from the record the correct facts are as follows
(a) The total plot area is 4501.30. As per the Development Plan
the Plot is reserved for the public purpose of ROI1.3 + RO 3.1
(Municipal office +Disaster Management Facilities). However
substantial portions of the plot are occupied by Slum Dwellers.
(b) Currently, the P North Ward comprises the entire Malad
West to Malad East and extends upto Madh island. This is too large
an area to be administered by a single ward office. Accordingly it
has been decided to split the P/North ward into P/West and P/East.
The existing ward officer at P North situated at Malad west is
already inadequate given the expanse of the area and the growing
population that it has to cater to. It is therefore necessary and
essential for another ward office building to be constructed on the
Malad East side for the new P- north East ward. The current plot is
located near to the Malad east railway station and is the only plot
available in that area with a reservation for a Ward Office. There is
an urgent need to construct BMC P/East office building for
providing basic facilities and amenities to the citizens which are
about six lakhs in the said ward and for which there is an increasing
demand.
(c) On 11.11.2020, the Developer had submitted plans for the
proposed area to be constructed on 500 sq. mtrs of the total plot and
at the time of submission itself, the developer was informed that the
said proposal plan was not acceptable given the requirements of
BMC and also the developer was made aware that the plans would
have to be approved by the user department which is the Assistant
Commissioner of ward Office and therefore the file was being
processed for the limited purpose of the NOC to be issued by the
Estate Department.
d) BMC had vide its letter dated 31.12.2021 given its NOC for
the issuance of the Annexure II for the said plot for the proposed
S.R. Scheme to various conditions including that as the plot is
reserved for Public Purposes [Municipal Office + Disaster
Management facilities and Municipal Chowky], the Chief Engineer
DPs specific remarks would be obtained before issuance of IOA by
the SRA [Condition (c)] and that the Developer would hand over the
built up amenity of Municipal Office, Disaster Management Facility
+ Municipal Chowky having a built up area of 4705 sqmtrs in one
building and that the plan of the said building would be got
approved from Municipal Authorities for size and shape [Condition
(1)]
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(e) The Annexure II dated 08.02.2022 issued by the Assistant
Commissioner P/North Ward also reiterated that the Developer
shall comply with all the conditions mentioned in the NOC dt
31.12.2021.
(f) SRA had issued Letter of Intent dated 11.11.2022 to the
Petitioners for proposed Slum Rehabilitation Scheme under
Regulation 33(10) on Slum Plots and Regulation 30 for non-slum
plot. The said LOI has mentioned in Condition No. 8 about D.P.
remarks wherein it is stated that the plot under SR scheme is
affected by reservation of Existing Municipal Chowky (EMS 1.2),
Municipal Officer+Disaster Management Facilities (R.O. 1.3 +
R.O. 3.1) and also affected by setback. The Developer shall obtain
required NOC from concern departments of BMC as per LOI
condition no.33 and as per condition no.53, the concurrence from
Assistant Commissioner (Ward Officer), P/North, Chief Engineer
Officer (Disaster Management) and Municipal Architect for roped
plans of Municipal Office Building + Disaster Management Facility
+ Cyclone Shelter Centre + Municipal Chowky is required. It is also
seen that the LOI issued by SRA on 11.11.2022 is expired which is
valid for 3 months and is not re- validated.
(g) Accordingly, a meeting dated 2.2.2023 was held wherein
even the SRA officals were present and it was the submission of the
Asst. Engineer SRA that the developer has not submitted any plans
for construction. Accordingly 7 meeting was held on 17.4.2023
wherein the representative of the Developer was present wherein
the- said representative was informed that the Plan forwarded was
unacceptable inasmuch as it provided for a narrow building [ 100
sq mtrs areas on either side of the staircase / lift well] of 20 storeys
with only one staircase , situated at the back of the plot. The
Developers representative/ Architects were required to submit
revised plans for the municipal building with a substantially
enhanced floor area and lesser height / floors , as well as two
staircases. The building was also required to be relocated to the
North side of the plot to have maximum frontage and accessibility
from 3 Roads i.e. the Haji Bapu Road, Nevetia Road, and 12.20m
DP road. It was seen that the draft plans submitted by
Architect/Developer are not as per provision of DCPR 2034. As the
land is owned by BMC and the proposed building thereon is for
Ward Office building as stated aforesaid, the developer was
informed to provide for the area which can be used as the public
administrative building for P/East Ward as there cannot be one
composite building for BMC ward office and the residential PAP
tenements. As aMunicipal Ward office, the aspect of fire safety,
security and safety of public in general is of utmost importance and
has to be considered as a top priority. For easy access and
convenience of people the public administrative building should not
be highrise and shall be restricted to limited floors.
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(h) Further, he was informed that the Municipal Office
building has to be designed to accommodate 18 number of
departments, their record rooms, conference meeting hall, separate
area for Corporators, Disaster Management Facility, and cyclone
shelter etc. Also, it should be convenient to the public and also for
their easy movement. The draft plans submitted were with
inadequate provisions of staircase, improper frontage, inadequate
open spaces, light and ventilation, inadequate parking which is not
suitable for Ward office building. The minimum buildable area on
each floor shall be minimum 1300 sq. mtrs. as perrecently
constructed H/West administrative office building. The
administrative office building should be designed with due
consideration of current population of approximately 6 lakh people
and for the need of future population for the next decade
atleast.Thereafter, the Petitioners Architects had contacted the
office of the Executive Engineer (DP) which had nothing to do with
the USER department on a number of occasions. The Petitioners
Architects had not submitted a revised proposal but had instead
sought approval of the submitted proposal. In view of the failure of
the Petitioners/ Architects to submit the requisite Revised Plan, the
BMC decided in Aug & Sept 2023 to revoke the sanction granted to
the Petitioners and to directly take up the task of constructing the
urgently needed requisite new Ward Office building, by
rehabilitating the eligible slum dwellers in accordance with law.
Accordingly, a letter dated 6.9.2023 was issued by the Municipal
Commissioner to the CEO SRA for revocation of the LOI.
8. I say that the order of the Ld Municipal Commissioner was
placed before this Hon’ble Court in WP L. 26148 of 2023. After
hearing both sides, since the Petitioners were not heard before
passing of the order dated 6.9.2023 the Ld. Counsel for the BMC on
instructions made a statement that a hearing would be given to the
Petitioners.
9. Accordingly the Developer was called upon to provide their
explanation by the letter dtd. 07.12.2023. A reply dated dt.
14.12.2023came to be filed by the Petitioner and thereafter based on
the material ‘pleas before the Ld. Additional Commissioner, the
Additional Commissioner issued a show cause letter dated
29.12.2023 calling upon the Petitioner as to why his NOC should
not be cancelled and a hearing was provided for on 2.1.2024.
10. After hearing both sides, the Ld. Additional Commissioner
by a speaking order dated 10.1.2024 was pleased to cancel the NOC
dated 31.12.2021 and has further directed the refund of premium
charges to the Developer.
11. It is therefore stated that given the conduct of the Petitioner
as stated show it is obvious that the Petitioner has been unable to
complete the project and the BMC has decided to complete the
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project on its own. The Petitioner does not have any constitutional
right in the project and therefore cannot invoke the writ jurisdiction
of this Hon’ble Court.”
11. Mr. Aradwad (Reddy), the learned Counsel for Respondent No. 3-SRA
has supported the contentions made by Mr. Joel Carlos, the learned Counsel for
the MCGM/ BMC. He has also placed on record an order dated 4 th March 2025
passed by Respondent No. 3-SRA which is a detailed order, and which also
considers the impugned order thereby cancelling the LOI dated 11 th November
2022 issued in favour of Petitioner No.2-Developer subject to the final outcome of
the present pending Writ Petition. He has submitted that the said order also has
categorically held that Petitioner No. 2-Developer failed to provide feasible plan
for more than a year after issuance of the LOI dated 11 th November 2022.
Considering that Petitioner No. 2-Developer failed to comply with the obligations
as given in the LOI, it was his contention that the order dated 4 th March 2025
passed by Respondent No. 3-SRA cancelling the LOI in favour of the Petitioners
also needs to be considered and upheld.
12. In rejoinder to the aforesaid submissions made on behalf of the
MCGM/BMC and the SRA, Mr. Godbole, submitted that on 9 th February 2022,
the Assistant Municipal Commissioner P/North Ward and the Competent
Authority themselves had written a letter to the Deputy Collector (W.S.), SRA and
served the final Annexure-II and instructed the deputy Collector (W.S.), SRA to
take further necessary actions in respect of the S.R. Scheme. He also drew our
attention to the letter dated 6th January 2023 addressed to the Executive Engineer
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(D.P.) P & R Ward submitting the plan showing BUA of BMC Office to be
handed over to the BMC and to issue the necessary NOC at the earliest. It was
therefore his contention that the Petitioner had not flouted condition Nos. 33 and
53 of the LOI dated 11th November 2022 as contended by Respondent No. 1-
MCGM/ BMC and that the impugned order had failed to take into consideration
this crucial fact rendering the same liable to be quashed and set aside.
13. Having heard learned Counsel for the parties. On a careful
consideration of the facts and the earlier orders passed by this Court and after
giving anxious consideration to the issue at hand, we are of the considered view
that in the facts and circumstances of the case, the impugned order which is a well-
reasoned order, does not warrant interference of this Court. We are further of the
view that the conduct of the Petitioners throughout the proceedings smacks of
non-compliant behavior on the part of the Petitioners when it came to abiding/
complying with the specific conditions of the NOC dated 31 st December 2021 and
the LOI dated 11th November 2022. As pointed out by Mr. Carlos, the learned
Counsel appearing on behalf of the Respondent No. 1-MCGM/ BMC, it is the
MCGM/ BMC’s land and they are the original owners of the said land and
therefore the right of the owner of the land is a preferential right which needs to
be of paramount importance, especially in a S.R. Scheme. Thus, the rights of slum
dwellers who are encroachers are subservient to the rights of the owners/MCGM
qua the redevelopment. The developer appointed by Petitioner No.1-Society
cannot have any independent rights. The rights of the developer are in fact
contractual rights under a pure contractual arrangement, it has with Petitioner
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No.1-Society. It is surprising as to how it can even maintain a Petition being
arrayed as Petitioner No.2.
14. This position in law has been consistently upheld by this Court in
Indian Cork Mills Pvt. Ltd. Vs. State of Maharashtra and others 1, Bishop John
Rodrigues Vs. State of Maharashtra2 and as upheld by the Supreme Court in
Tarabai Nagar Co-op. Hsg. Society (proposed) Vs. State of Maharashtra & Ors. 3
Further, this Court in a recent decision passed in the case of Nesco Ltd. Vs. State of
Maharashtra4 has followed the aforesaid decisions and held that the preferential
rights of redevelopment vests with owner/landowner. The relevant paras of
NESCO Limited Vs. State of Maharashtra read thus:-
11. At the outset, we may observe that it is not in dispute that the
land in question is a private land in respect of which the petitioner enjoys
valuable rights under Article 300A of the Constitution. It is Mr. Chinoy’s
submission that merely for the reasons there exists slum structures on the
petitioner’s land, the slum dwellers without recognition of the petitioner’s
preferential right in respect of the land and more particularly in respect of
any redevelopment, could not have made a proposal to the CEO SRA for
acquisition of the said land. It is Mr. Chinoy’s submission that the legal
position in this regard stands well settled in the decision of this Court in
the Indian Cork Mills Pvt. Ltd. (supra) in which the co-ordinate Bench of
this Court, in regard to such preferential rights, made the following
observations:
“62. That a preferential right for redevelopment is so vested in the
owners/landholders and/or occupants is further clear in view of a
conditional power/authority created with the SRA to undertake
redevelopment of the slum rehabilitation area in a two-fold manner
firstly by exercising power under sub-section (1) or (2) of Section 13
which is to re-develop the land by entrusting it to any agency on a
failure of the landholder or the occupant in not coming forward
within a reasonable time with a scheme for re-development; and when
application of Section 13(1) and (2) do not fetch any result by re-
developing or carrying out development under the slum rehabilitation
1
2018 SCC Online Bom 1214
2
2004 SCC Online Bom 1632
3
2025 SCC OnLine 1795
4
Writ Petition No.1018 of 2017Page 21 of 34
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the land under section 14 as applicable with modification under
Chapter I-A. It is thus clear that the object and purpose which the
provisions of Section 3B(4)(e), Section 13(1) and (2), Section 12(10)
and Section 14 (as modified by under Chapter IA) is to achieve and
bring about an effective redevelopment of slum rehabilitation area.
63. Thus, from the legislative scheme of the amended provisions it can
be clearly inferred that the rights so conferred under these provisions
on the owner/landholder/occupant cannot be usurped directly by
putting into operation the acquisition machinery, simply because such
power exist on the statute book. The exercise of such power within the
scheme of Chapter I-A is required to be resorted by due adherence to
the said provisions which have created and recognized the legitimate
rights in the owners, landholders and occupants to undertake re-
development. The power to acquire land is also required to be
exercised in a fair manner and certainly in the context of the present
statutory scheme, when the object and purpose for which acquisition
is to be undertaken can be achieved by other methods and for which
the statute has made the requisite provision for achievement of such
purpose.
……….
100. We also cannot accept the submission as urged on behalf of the
society that since the society has submitted a scheme prior to the
petitioner’s scheme, the preferential right in favour of the petitioner
does not survive. This submission pre-supposes that there is a
preferential right in the petitioners to redevelop the said land……..”
12. Mr. Chinoy has also drawn the Court’s attention to the decision
of the Division Bench of this Court in Bishop John Rodrigues (supra) in
which referring to the decision in Indian Cork Mills Pvt. Ltd. (supra) in
the similar context the Court made the following observations:
“101. In these circumstances, when valuable private rights as
guaranteed under Article 300A of the Constitution to an owner of the
land are being deprived under the garb of slum rehabilitation, there
has to be an insurmountable situation on record of the SRA or for any
reasonable body of persons to come to an unimpeachable conclusion
that the only and only remedy and/or avenue in a given case is to
acquire the private land and not permit the owner of the land to
undertake the development. The CEOSRA has an onerous obligation
to reasonably, non-arbitrarily, and objectively deal with the valuable
property rights of private citizens who are dragged in such situation
that the monsters of encroachment and persons supporting them take
the rule of law in their hands in depriving the land owner of his right
to property. They forget that there is a rule of law and there are Courts
and any such attempt to dent the rule of law can be dealt with iron
hands. We may also add that if the official machinery was to act as perPage 22 of 34
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international city like Mumbai being also known for its slums on
private and public lands [See the observation of the Court in High
Court on its own motion (In the matter of) Jilani Building at
Bhiwandi v. Bhiwandi Nizampur Municipal Corporation.
102. Be it so, in our opinion, a cumulative reading of the
provisions under Chapter-I-A does not, in any manner, depict a
legislative intent that the moment the private land is declared as a
slum and a cooperative society of slum dwellers is formed, no
opportunity whatsoever is required to be granted to the owner of the
land to undertake development of the land. In fact, primary obligation
on the CEO-SRA as also for the slum rehabilitation society is to issue
a notice to the owners of the land specifying the period/a time bound
schedule i.e. 120 days as contemplated under Section 13(1) of the
Slum Act. This would be the basic necessity before a owner could be
deprived of its constitutional rights under Article 300A before
applying the statutory 120 days as contemplated under Section 13(1)
of the Slum Act either from the declaration of the slums as the slum
rehabilitation area or any insistence on the part of the society and
which may not be to the knowledge of the owner. In our opinion, the
petitioner would bevcorrect in its contention that Section 13(1) would
be required to be read in the context of what has been observed by the
Division Bench of this Court in Indian Cork Mills Pvt. Ltd. v. State of
Maharashtra (supra), in as much as, for a valid acquisition under
Section 14, the pre-requisite would be an opportunity to call upon the
owner of the land to come forward with a scheme to undertake the
redevelopment by putting him to a notice that a rehabilitation scheme
if not submitted by him, would be a circumstance which would be
taken against him so as to take steps to acquire the land. The Division
Bench had held that such notice to the land owners was imperative,
considering the plain reading of Section 14(1) of the Slum Act. The
observations of the Division Bench in that regard are already noted by
us hereinabove.
…. … ….
111. We may also observe that such contention of the society that the
moment the land in question, which is of private ownership, is
declared as a slum and after coming into force of Regulation 33(10) of
the DCR would mandate steps to be taken to develop the land, would
also be required to be held to be fallacious. As stated hereinabove, it
cannot be expected that the owner of the land would instantly possess
the necessary wherewithal, or would have no opportunity to
mobilise/organise himself to undertake a redevelopment. Thus, it is
ill-conceivable that an instant development of such land from the
resources of a private person can automatically be foisted. Such an
argument also lacks discernment to any ground realities in which the
owner of the land in a given situation may find himself, under the
scheme of the things.
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118. If this be the position, then certainly, the slum dwellers merely
by forming a society cannot assert that their rights are higher than the
rights of the owners of the land and as successive Division Benches of
this Court has held that the rights of the slum dwellers cannot be
elevated (as if they are the owners of the property), so as to control the
rights of the owners of the land under the garb of rehabilitation and
through the resources of a developer, foist/dictate compulsory
acquisition of land against the owner. The acquisition of the land for
rehabilitation of slum dwellers can also never be on a pedestal and/or
of a status of an acquisition of the land for public purposes in relation
to public project to be undertaken by the State in exercise of its
powers of eminent domain. This for two reasons firstly, it is a private
group of persons (slum developers) who would be the beneficiary of
such land acquisition and the second beneficiary would be the
developer who would reap bonanza of a huge Floor Space Index (FSI)
in undertaking construction of commercial/saleable premises. Thus,
the only beneficiaries of such acquisition of private persons, the
Government would spend a meager amount of compensation to be
paid as per Section 17 of the Slum Act. Despite this clear position,
quite unfortunately, the experience in relation to acquisition under
the Slum Act is quite different. It is completely misunderstood,
misapplied, misinterpreted or abused by the authorities; this
considering the proliferation of litigation in this regard, concerning
private lands as encroached, and what is happening to public lands is a
mystery which can never be resolved.
….. …
121. Thus, a conclusion can be reached that the process of acquisition
of private land under the Slum Act is quite draconian with minimal
say to the owners of the land coupled with enormous discretion
conferred on the CEO, SRA, leaving an enormous scope and window,
for large scale arbitrariness and illegality. Considering such
parameters, there is an onerous obligation on the State Government
not to have a mechanical approach in processing proposals from the
CEO SRA and to very minutely examine each and every proposal and
reach to a subjective satisfaction for reasons to be recorded in writing
as to whether the proposal for acquisition as being put up by the CEO,
SRA is fair, reasonable and non-arbitrary. In the present case, valuable
land of the petitioner situated at Bandra is being acquired for merely
35 slum dwellers. It is quite astonishing as to why in such a situation,
the SRA would not grant an opportunity to the petitioner to
undertake redevelopment of its own land and rehabilitate the slum
dwellers and in fact, resort to a compulsory acquisition of the
petitioner’s land under Section 14 of the Slum Act.”
(emphasis supplied)
13. Mr. Chinoy has brought to our notice a recent decision of the
Supreme Court in Tarabai Nagar Co-op.Hsg.Society (proposed) (supra)
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wherein the Supreme Court was considering a challenge to the decision
of the Division Bench of this Court in Indian Cork Mills Pvt. Ltd.
(supra). In upholding the said decision of this Court, the Supreme Court
recognized the position in law that the land owner would have
preferential right to undertake development, and if any acquisition of
the land declared as slum rehabilitation area is sought to be undertaken
without recognition of the preferential right of the owners of the land,
such acquisition would be required to be held to be illegal. The relevant
observations are required to be noted which read thus:
“77. In this context, we deem it appropriate to clarify at this
stage that Section 14 empowers the State Government to acquire land
if necessary to enable the SRA to carry out development under the SR
Scheme. It is writ large on the text of Section 14 that the State can
invoke its power to acquire the land, if it is necessitated, as per the
SRA, for the implementation of a Scheme.
83. Rather, any process to acquire the land shall have to be kept
in abeyance till such time as the owner’s preferential right to develop
it stands extinguished. Since it is open to the owner to file its own SR
Scheme within a reasonable time and the proposal of the owner, if
valid and complete, would take primacy, it cannot be said that there is
any legal necessity to acquire the land. If acquisition is allowed to take
place at this stage, it will jeopardise the preferential right of the
landowner. It is only when the owner declines to undertake
development or to support any third-party development, thereby
foregoing its preferential right, that such a necessity would actually
arise. There can thus be no doubt that, as long as the owner is willing
to undertake development in exercise of its preferential right, the
acquisition cannot proceed.
84. This can also be harmoniously read in conjunction with the
requirement for a notice-cum-invitation to the owner, as set out in
Section 13. Until the SRA has invited the owner to submit an SR
Scheme, the owner’s right to develop the land cannot be said to have
closed. In such a case, the subsisting preferential right cannot be
frustrated or undermined by initiating the acquisition process.”
14. Also in a further decision of the Supreme Court in Saldanha Real
Estate Pvt. Ltd. Vs. Bishop John Rodrigues & Ors. 5 the decision of this
Court in Bishop John Rodrigues (supra) has been upheld. In a context
similar to the present case, the following are the questions which had
arisen for consideration of the Supreme Court.:
“D. Issues
5
2025 SCC OnLine SC 1794Page 25 of 34
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16. Having regard to the issues already adjudicated upon in
Tarabai (supra), we deem it appropriate to confine our analysis to the
following three questions:
I. Whether the High Court has rightly rejected Kadeshwari Society’s
preliminary objection?
II. Whether the 2018 Amendment impacts the law laid down in
Indian Cork Mills (supra) and as reiterated in Tarabai (supra)?
III. Whether, in the facts of the instant case, the High Court
rightly set aside the notice dated 29.10.2021 and the order dated
29.03.2022?”
15. In answering the aforesaid issues on the validity of the
acquisition, the Supreme Court recognized the preferential rights of the
owners of the land (Bishop Rodrigues). The relevant observations as
made by the Supreme Court are required to be noted which read thus:
E.3 Issue III: Validity of Acquisition
26. This Court in Tarabai (supra) has unequivocally established
that: (i) the private owner of an SR Area has a preferential right to
develop it; (ii) the SRA must invite the landowner to come forward
with a redevelopment proposal and give them reasonable time to do so
before the said preferential right extinguishes; and (iii) the State or the
SRA cannot move to acquire the land before the preferential right of
the owner is extinguished. These principles will also apply mutatis
mutandis to the case in hand.
27. Consequently, there vests a preferential right in favour of
the Church Trust, over and above the SRA, occupants, or other
stakeholders, to develop the Subject Land. The Trust ought to have
been invited by the SRA to submit a proposal and undertake such
redevelopment after the declaration dated 29.12.2020 was issued.
Thus, the SRA cannot proceed for acquisition of the Subject Land
unless (i) such a notice-cum-invitation is extended, and (ii) thereafter,
the right of the Church Trust is extinguished if it fails to submit a
redevelopment scheme within the prescribed period of 120 days.
28. The High Court has held that there was no compliance of
these preconditions by the SRA before initiating the acquisition, and
the entire process was liable to be invalidated. The High Court has
further found from the conduct of the Appellants that the acquisition
proceedings arose from an exercise of power in bad faith. We,
therefore, now proceed to examine whether the High Court was right
in drawing such a conclusion.
……….
32. The inevitable consequence of the SRA’s omission to issue a
separate notice under Section 1329 is that the Church Trust’s
preferential right to redevelop the Subject Land remains intact. In the
absence of a valid notice or opportunity, there existed no legal basis to
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extinguish this right. The acquisition was, therefore, vitiated in law,
falling afoul of the prescribed procedure.”
20. Before parting we would be failing in our duty if we do not
remind the Slum Authority as also the appropriate officer of the State
Government as to the responsibility the law would cast on the Chief
Executive Officer as also the officials of the State Government before the
draconian powers under Section 14 of the Slum Act, are exercised. Such
powers can never be undertaken at the behest of unscrupulous elements
and discarding the legal rights of private landlords when the land
inundated by slums is of private ownership. The significant observations as
to what happens in reality is echoed by this Court in Bishop John
Rodrigues (supra) when the Court made the following observations:-
“119. It also cannot be overlooked that the acquisition of private land
under the Slum Act has a large element of discretion being made
available to the CEO, SRA as also to the State Government, object of
which as stated herein above, is not of some acquisition for a public
purpose, much less of a monumental nature, but for a private purpose
that is rehabilitation of a limited number of slum dwellers
accompanied with a private benefit which the developer would reap.
The nature of the compulsory acquisition under the Slum Act, hence,
is not to achieve a public purpose but purely private. Thus, the
rudimentary principles on which a decision to acquire land for a
public purpose are premised, is certainly not the consideration when it
comes to acquisition of private land under the Slum Act. We may
observe that the method of acquisition under the Slum Act is also
quite draconian in as much as after the objections are raised by the
person interested against the acquisition, it is completely the
discretion of the competent authority (CEO, SRA) to inform the
Government of the inclination towards acquisition and the
Government forming an opinion that the land is required to be
acquired and accordingly the land would be acquired by publishing a
notice to that effect in the Official Gazette. … … … .”
21. In the aforesaid context, the Supreme Court in Saldanha (supra)
has made the following significant observations which need to be borne
in mind by the officials of the SRA:-
“48. ….. .. … ..Nevertheless, for some inexplicable reason and with a
sense of uncharacteristic urgency, which again speaks to the invisible
but pervading influence of the powerful private developer, the SRA
has forsaken the basic tenets of equity and recommended the
acquisition.
49. Throughout this case, the SRA and its CEO appear to have
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WP 1612 OF 2024.DOCXthe rights of the landowner. On the contrary, the facts reveal a
prejudiced attempt by the SRA to undermine legislative and judicial
efforts and hand over the Subject Land and the benefits of its
rehabilitation to Saldanha. Such actions of a public authority, marred
by collusion and connivance and motivated by extraneous profit
interests of private builders, are highly depreciable and underline the
possibility of bureaucratic misuse of statutory provisions.
50. The facts of the instant case compel us to infer that Saldanha’s
overreaching influence went beyond the slum-dwellers’ proposed
society. In its attempt to take over the Subject Land, the developer
appears to have gotten the typically slow-moving bureaucratic wheels
of the SRA to run at full speed. Moreover, Saldanha was able to
achieve this manoeuvre at a time when the entire country was under
lockdown and the machinery of governance was overwhelmed by the
unprecedented challenges of the COVID-19 pandemic.
51. These circumstances underpin the need for practical and
actionable safeguards in a legal system involving competing interests
among private parties. The Slums Act, while providing wholesome
protection to slum dwellers and their homes and livelihood, does not
give such express protection to the interests of the owner of the land.
The ensuing vacuum, as we have seen in these appeals, allows
opportunistic developers to swoop in, exploit the circumstances of the
poor slum dwellers, manipulate the hand-in-glove authorities, and
enrich themselves off the helpless owner’s land.
52. Keeping the facts of this case and the obviously colourable
conduct of the Appellants in mind, the acquisition proceedings cannot
be allowed to sustain. As such, the High Court has rightly nipped
these proceedings in the bud, protecting the statutory rights and
interests of the Church Trust over the Subject Land and preventing
the Appellants from illegally grabbing it.”
15. We are therefore in agreement with the aforesaid contentions as
canvassed by Mr. Carlos that the Respondent No. 1- MCGM/ BMC being the
owner of the subject land will have preferential ownership and it is well within
their powers to use and exploit the said land and give NOCs/LOIs subject to
fulfillment of a condition by the intending developer i.e. Petitioner No. 2-
Developer in the present Petition. We are further of the view that condition Nos.
33 and 53 of the LOI dated 11 th November 2022 required Petitioner No.2 –
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Developer to get required NOC from the concerned department of Respondent
No. 1- MCGM/ BMC with concurrence from the Assistant Municipal
Commissioner (Ward Officer), P/North, Chief Engineer Officer (Disaster
Management) and Municipal Architect for proposed plans of Municipal Office
Building, Disaster Management Facility, Cyclone Shelter Centre, Municipal
Chowky.
16. It is seen from a perusal of the records that Petitioner No. 2- Developer
has breached these conditions and has not sought necessary permissions and
therefore the cancellation of the NOC by the impugned order has been rightfully
done. Further, we are of the view that Petitioner No. 2- Developer has not taken
any steps to submit any feasible plans for almost a year from the date of the LOI
dated 11th November 2022 which was granted in favour of the Petitioners.
17. This, to our mind, shows the lackadaisical attitude on the part of the
Petitioners and therefore it would not lie in their mouth now to contend/canvass
that they have complied with all the conditions of the NOC and the LOI. The
impugned order therefore has rightly taken into consideration all these aspects and
the findings therein do not require disturbance/interference. We are of the view
that once the NOC/LOI was issued with a specific condition that the subject land
is reserved for public purposes i.e. Municipal Ward Office, Disaster Management
Facilities and Municipal Chowky, the Petitioner No. 2-Developer was under an
obligation to hand over the said amenities to Respondent No. 1-MCGM/ BMC.
The non-compliance thereof by Petitioner No. 2-Developer has rightly rendered
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cancellation of the NOC as held in the impugned order. The relevant findings in
the impugned order are reproduced below:-
18. In response to the show cause notice the developer AND/ OR his
representatives appeared before me on 2.1.2024 and relied on the same
submissions as filed by them on 14.12.2023 but however did not come up
with any new plan as to how the entire requirement of the BMC could be
fulfilled. The developer also did not submit any document to show that
the user department i.e. the Ward Officе has approved his plans. In fact
in this hearing as well as in the previous hearing the Architect of the
Developer made a candid admission that it is not feasible for them to
construct the building as the BMC’s requirement.
19. The Developer and his representatives also stated that the BMC
would haye no jurisdiction to pass this order as the LOI was issued and
therefore the BMC would not be a planning authority in the said matter.
20. During the hearing, their Architect and Project Manager were
called upon to make submissions on the plans submitted by them. A bare
perusal of the draft plans submitted by Architect/ Developer would show
that they are not as per provision of DCPR 2034 and is not acceptable
for Public Building of Ward Office. It was clearly pointed out by the
expert officials of the BMC that as the said proposed building will be
used as the public administrative building for P/East Ward, there cannot
be one composite building for BMC ward office and the residential PAP
tenements as the Architect was suggesting a composite building. As a
Ward office, the aspect of fire safety, security and safety of public is of
utmost importance has and to be considered as a top priority.
convenience For easy access and of people the public administrative
building should be highrise not and shall be restricted to limited floors.
Further, the Municipal Office building has to be designed to
accommodate 18 number of departments, their record rooms, conference
meeting hall, separate area for Corporators, Disaster Management
Facility, and cyclone shelter etc. Hence, the minimum buildable area on
each floor shall be minimum 1300 sq. mtrs. as per recently constructed
H/West administrative office building. The administrative office building
should be designed with due consideration of current population of
approximately 6 lakh people and futuristic population after 50 years.
However, looking into urgency for the said project, the feasibility of
project was discussed on the plan earlier submitted by the Architect and
it was admitted by the Architect himself that the proposed project at the
said plot is not viable considering the requirement of BMC. However,
neither representative/ did the: Developers Architects satisfy come up
with a plan to show that they can with the requirements of the BMC nor
are they willing to state that they are unable to do the same, leaving the
entire project in a limbo and causing colossal waste of the BMC’s
resources.
21. The proposed plan submitted by the Architect of the Petitioner for
one composite building of ward office alongwith PAP tenements with
inadequate open space, Municipal Chowky and A Disaster Management
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Facility is not viable. The citizens of P/Bast ward can’t be deprived of
basic amenities and services which-need to be provided from ward office
from this area. SRA had issued Letter of Intent (LOI) dtd. 11.11.2022 to
the Petitioners for proposed Slum Rehabilitation Scheme under
regulation 33(10) on Slum Plots and regulation 30 for non-slum plot.
The said LOI has mentioned in Condition no.8 about D.P remarks
wherein is it is stated that the plot under SR Scheme is affected by
reservation of “Existing Municipal Chowky (EMS 1.2), Municipal Officer
+ Disaster Management Facilities (R.O. 1.3 + R.O. 3.1)” and also
affected by setback. And shall obtain required NOC from concern
departments of BMC as per condition no. 33. As per condition No, 53,
the concurrence from AC P/N, Ch. Officer (DM) & Municipal Architect
for proposed Plans of Municipal Office Building + Disaster
Management Facility + Cyclone Shelter Centre + Municipal Chowky is
required. Itis also seen that the LOI issued by SRA on 01.11.2022 is
expired which is valid for 03 months and is not re-validated till date.
Thus, the developer cannot merely state that he has submitted a plan and
therefore the same should be considered as accepted because there was
not specific rejection.
(emphasis applied)
22. The ward office of P/North Ward has been divided due to the high
density of population and vast area within the jurisdiction of P/North
ward to P/East and P/West. The P/East ward at Malad (East) is
therefore to be built on this plot bearing CTS No. 558/B and 558/B 1to
40. which is the only plot having reservation for. Municipal Office
building at Malad (East).
(emphasis applied)
23. Thus, as per the aforesaid LOI conditions, the Petitioners
alongwith other conditions, were required to construct and handover the
Municipal ward office as per the reservation and was in addition 24.
required to construct 132 PAP tenements.
(emphasis applied)
24. In the written reply dated 12.12.2023. the Developers
representative/ Architects try to put forth a case that the Developers
representative/ Architects had submitted a proposal which was approved
by various BMC officials on 27.7.2021 and by the Hon’ble Municipal
Commissioner on 29.12.2021. This contention is false to the knowledge
of the Developers representative/Architects, as stated in the earlier part
of this order that at that stage the proposal was under consideration only
for the purposes of NOC of the Estates Department and it was made
amply clear to the Developers representative/ Architects that the actual
proposal for the building will have to be approved by the User
Department i.e. the Ward Office. Infact even in the letter dated
22.12.2022 it was clearly communicated to the developer that he must
submit the details of the proposal to be submitted to the SRA showing the
built up area for the BMC office. What further negates the case of the
developer is that the developer thereafter submitted plans vide his letter
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received on 6.1.2023 and its non acceptance was not only discussed in
the meeting dated 2,2.2023 but was even communicated to the
Developers representative/ Architects in the meeting dated 17.4.2023.
Therefore, the contention that the plans were already approved on
27.12.2021 is false to the knowledge of Developers representative/
Architects.
25. Till the time of hearing the developer had submitted plans having
200 square meters of floor plate which cannot accommodate a single
department on same floor, the staff of the same department /section has
to sit on different floor as the floor plate is very small. Moreover
composite public office building with Slum Rehabilitation tenements will
create safety, security issues. The said plans are with inadequate
provisions of staircase, improper frontage, inadequate open spaces, light
and ventilation, 8 level of parking (including 3 underground) which is
not suitable for Ward office building which will be used by general
public. Hence, the plans cannot be accepted as proposed. Hence, under
no circumstances could the said plans be considered to have been
accepted.
26. Now, after the hearing was conducted on 02.01.2024 a
representation is submitted by the Developer/Architect on 08.01.2024
alongwith plans. The plans submitted are not duly signed by the
Developer/Architect and are not in consonance with the provisions of
DCPR -2034. The layout plans, area statement, FSI calculation,
elevation of the structure, etc. are also not submitted alongwith plans.
Further, it was clearly mentioned in show cause notice dtd. 29.12.2023
that the floor plate required is minimum 1300 sqmt. However, the plans
submitted are showing plot area of 1300 sqmt and floor plate of 8000
sqft. The developer in spite of this entire span of events from the date of
LOI, has not even placed this plan with the User Department to
understand their needs.
27. Hence, it need not be stated that the plans cannot be accepted as
proposed and in fact they seem rather a formality or after thought of the
developer with not even a semblance of a building plan vis a vis its
legality or acceptability. Infact the manner in which it is just submitted in
the inward post the conclusion of the hearing shows the lack of any
seriousness on part of the developer in ensuring that the project
commences. Thus, it is seen that the proposal submitted by Developer is
not feasible in view of the BMC’s requirement as has been indicated and
for the reasons stated above.
28. As far as the submission of the developer that the BМС would have
no jurisdiction to pass this order as the LOI was issued and therefore the
BMC would not be a planning authority in the said matter, in my view,
the same is entirely erroneous as the LOI is, issued only based on the
NOC issued by the BMC. Infact the NOC issued by the BMC was
obviously conditional and was not a form of irrevocably giving its rights
to the developer to carry out development as he pleases. It is inherent
that if the BMC has the power to grant an NOC for the development of
its property it will also have right to revoke the same, therefore such an
argument of the Developer cannot be accepted as it would tantamount to
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giving the rights of the BMC unconditionally in the hands of private
developer. In my view, the BMC’s interest are paramount and private
developers cannot be allowed to usurp the same under the guise of a
slum scheme. I am of the considered view that the developer has no
inherent right to develop the property of the BMC under the guise of just
taking an NOC from the BMC. Incase if the developer claims that he has
an absolute right then he must be able to show that such a right was
granted to him by the General Body of the Corporation as per the
provisions of the MMC Act. An NOC cannot and will not create any
irrevocable right much less a right in the land in favour of the developer
as it would run contrary to the spirit of the Act. The rights of the RMC
and its authorised tenants under the MMC Act can only be transferred by
way of the procedure as prescribed in the Act, anything lesser, like an
NOC is of no aid to the developer. I therefore, reject this argument put
forth by the developer.
29. Infact it is clear that even as on date the Developers
representative/ Architects are unable to put forth a plan which can be
even considered for the purposes of a BMC Ward office. This incapacity
of the Developers representative/ Architects is causing inordinate delay
in providing amenities to thousand of citizens who have to travel for over
an hour to reach the current ward office location and is adversely
affecting the administration.
30. The BMC as a corporation cannot remain silent to the aspect that
the Developer wants to use the BMC’s land for this project and is unable
to even provide a feasible plan for the past more than a year after
issuance of an LOI which has also lapsed. Just merely stating that a plan
was submitted somewhere in the past and then sitting over it without any
action was definitely not the purpose of granting an NOC for this
project. The developer ought to have had a proactive and persuasive role
in ensuring that by now the requirements of the user department were
met and the building ought to have been under construction. Having seen
the record of the BMC and the approach of the Developers
representative/ Architects, continuing with such a developer would, in
my view be against the monetary and administrative interest of the ВМС.
The BMC is losing out providing services of a ward office to lakhs of
people due to the lackadaisical attitude of the developer whose only
interest is to ensure that the BMC gets a raw deal in the form. of a ward
office which does not even match with its current requirement. I am
therefore satisfied that the developer has failed in all aspects to show
that the developer can be continued in this project or that the developer
can be trusted with building a ward office of BMC standards.
(emphasis applied)
18. These findings in the impugned order therefore do not warrant
interference as the same have been rendered on a complete and proper
appreciation of the facts of the case.
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19. In the light of the above discussion, we have no hesitation in holding
that petitioner no.2-developer had miserably failed to comply with the conditions
of the NOC and the Letter of Intent (LOI). The impugned order dated 10 th
January 2024 is based on the correct findings, which are borne out by the record.
We find no infirmity whatsoever, legal or otherwise, to interfere with the same.
The present petition hence deserves to be dismissed. It is, accordingly, dismissed.
No costs.
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